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Angel Torres v. United States of America

November 19, 2012

ANGEL TORRES PETITIONER,
v.
UNITED STATES OF AMERICA RESPONDENT.



The opinion of the court was delivered by: Tucker, J.

MEMORANDUM AND ORDER

November____, 2012

Presently before this Court is Petitioner's Motion to Vacate, Set Aside, or Correct Sentence Pursuant to 28 U.S.C. § 2255 (Doc. 154) and the Government's Motion in Opposition (Doc. 159). For the following reasons, the Court will deny Petitioner's Motion.

BACKGROUND

On February 10, 2005, a grand jury in the Eastern District of Pennsylvania returned a third superseding indictment of Angel Torres, charging him with one count of conspiracy to interfere with interstate commerce by robbery, in violation of 18 U.S.C. § 1951 (the Hobbs Act); ten counts of interference with interstate commerce by robbery, also in violation of the Hobbs Act; and ten counts of knowingly using and carrying a firearm during and in relation to a crime of violence, in violation of 18 U.S.C. § 924(c). The charges stemmed from ten gunpoint robberies of bars, pizza shops, and food stores between the dates of December 27, 2002 and January 28, 2003. On February 23, 2005, following a seven-day trial, the jury found Torres guilty of all charges.

On November 29, 2005, the district court imposed a sentence of 262 years imprisonment, a term of supervised release of five years, restitution of $4,575, no fine, and a special assessment of $2,100. Torres filed a timely appeal. On October 15, 2007, the Third Circuit Court of Appeals affirmed the conviction of Torres. Torres subsequently filed a petition for writ of certiorari, which was denied by the United States Supreme Court on January 7, 2008. On December 26, 2008, Torres filed a pro se motion to vacate, set aside, correct sentence under 28 U.S.C. § 2255.*fn1

On October 26, 2010, Torres filed a second motion under 28 U.S.C. § 2255 on the district court's standard form, along with a memorandum of law in support thereof.

In his current petition, Petitioner claims that (1) counsel was ineffective for failure to object to the district court's imposition of sentence without proper consideration of § 3553(a) factors; (2) counsel was ineffective for failure to object to the district court's jury instruction on aiding and abetting; (3) counsel was ineffective for not appealing the finding of guilt on nine out of the ten § 924(c) counts because the counts were based upon the same unit of prosecution; and (4) counsel was ineffective for not appealing the verdicts on the § 924(c) because the mandatory provisions of the statute are unconstitutional.

LEGAL STANDARD

The benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result. Strickland v. Washington, 466 U.S. 668, 686 (1984). The two-pronged Strickland test requires the defendant to show not only that counsel's performance was deficient, but also that such deficient performance prejudiced the defense. Id. at 687. In order to prove deficiency of counsel, defendant must show that counsel made errors so serious that counsel was not functioning as the counsel guaranteed the defendant by the Sixth Amendment. Id. Furthermore, defendant must prove that counsel's performance prejudiced the defense by illustrating that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Id. In addition, a defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Id. at 694. If petitioner does not satisfy either prong of the test, his claim for ineffective assistance of counsel fails, making a determination on the remaining prong unnecessary. Id. at 697.

DISCUSSION

A. Proper Consideration of § 3553(a) Factors

Petitioner challenges his conviction on grounds that counsel was ineffective for failure to object to the district court's imposition of sentence without proper consideration of § 3553(a) factors. Federal sentencing law requires the district judge to impose a sentence sufficient, but not greater than necessary, to comply with the purposes of federal sentencing, in light of the Sentencing Guidelines and other factors pursuant to 18 U.S.C. § 3553(a). See Freeman v. United States, 131 S. Ct. 2685, 2692 (2011). In assessing post-Booker sentencing, the Third Circuit has determined that [t]here are no magic words that a district judge must invoke when sentencing, but the record should demonstrate that the court considered the § 3553(a) factors and any sentencing grounds properly raised by the parties which have recognized legal meritand factual supportin the record. United States v. Cooper, 437 F.3d 324, 332 (3d Cir. 2006). Additionally, if the district court's sentence is procedurally sound, [the Third Circuit] will affirm it unless no reasonable sentencing court would have imposed the same sentence on that particular defendant for the reasons the district court provided. United States v. Tomko, 562 F.3d 558, 568 (3d Cir. 2009).

According to Petitioner, a review of the sentencing transcript reveals that the District Court treated the sentencing guidelines as mandatory and never considered §3553(a) factors. Petitioner's Brief 5. Petitioner specifically states that his sentence was substantively unreasonable because it resulted in a significant disparity from his co-defendant's 20 year sentence. Id. at 3. Indeed, district courts are to look to "unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct." 18 U.S.C. §3553(a)(6). However, the intent of § 3553(a)(6) is to promote national uniformity among similarly-situated defendants, not uniformity among co-defendants. United States v. Parker, 462 F.3d 273, 277 (3d Cir. 2006). The Third Circuit has held that a defendant "cannot rely upon § 3553(a)(6) to seek a ...


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